Bill Text: TX HB2930 | 2013-2014 | 83rd Legislature | Engrossed
Bill Title: Relating to procedures for asserting taking claims against certain governmental entities.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2013-05-16 - Left pending in committee [HB2930 Detail]
Download: Texas-2013-HB2930-Engrossed.html
83R22010 TJS-F | ||
By: Miles | H.B. No. 2930 |
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relating to procedures for asserting taking claims against certain | ||
governmental entities. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 5, Civil Practice and Remedies Code, is | ||
amended by adding Chapter 112 to read as follows: | ||
CHAPTER 112. CERTAIN TAKING CLAIMS AGAINST GOVERNMENTAL ENTITIES | ||
Sec. 112.001. DEFINITIONS. In this chapter: | ||
(1) "Economic damages" has the meaning assigned by | ||
Section 41.001. | ||
(2) "Expert" means a person giving opinion testimony | ||
who is qualified to do so under the Texas Rules of Evidence. | ||
(3) "Expert report" means a written report by an | ||
expert providing a fair summary of the expert's opinion as of the | ||
date of the report. | ||
(4) "Governmental action" includes an action | ||
described by Section 2007.003, Government Code. | ||
(5) "Governmental entity," "owner," and "taking" have | ||
the meanings assigned by Section 2007.002, Government Code. | ||
(6) "Taking claim" means a suit by an owner against a | ||
governmental entity for damages or injunctive relief on the ground | ||
that governmental action resulted in a taking. | ||
Sec. 112.002. APPLICABILITY. This chapter applies to a | ||
taking claim filed in this state in which the governmental entity is | ||
an incorporated municipality with a population of more than two | ||
million. | ||
Sec. 112.003. NOTICE TO GOVERNMENTAL ENTITY. (a) Not later | ||
than the 60th day before the date on which an owner brings a suit to | ||
which this chapter applies, the owner must give written notice to | ||
the governmental entity. The notice must: | ||
(1) state the owner's mailing address; | ||
(2) describe in reasonable detail the facts supporting | ||
the owner's claim; and | ||
(3) be delivered in person using a third-party | ||
delivery service or sent by certified mail, return receipt | ||
requested, to the person on whom citation would be served in a suit | ||
under Section 101.102(c). | ||
(b) In a suit to which this chapter applies, the owner's | ||
pleadings must include a statement that the owner has complied with | ||
the notice requirements of this section and provide evidence of a | ||
receipt issued by a third-party delivery service or a return | ||
receipt, as applicable. | ||
(c) Receipt by a governmental entity of notice under this | ||
section tolls any applicable statute of limitation until the 75th | ||
day after the date the notice is received. | ||
Sec. 112.004. REPLY BY GOVERNMENTAL ENTITY. Not later than | ||
the 45th day after the date a governmental entity receives notice | ||
under Section 112.003, the governmental entity shall deliver to the | ||
owner, in person using a third-party delivery service or by | ||
certified mail, return receipt requested, a reply stating: | ||
(1) whether the governmental action, if any, was | ||
undertaken due to a condition or use of the owner's private real | ||
property that constituted a public or private nuisance as defined | ||
by background principles of nuisance and property law of this | ||
state; or | ||
(2) whether the governmental action, if any, was | ||
undertaken to enforce a law enacted to protect public health and | ||
safety and, if so, specifically identifying that law. | ||
Sec. 112.005. EXPERT REPORT. (a) In a suit on a taking | ||
claim in which a governmental entity, in the reply required by | ||
Section 112.004, asserts that the governmental action was | ||
undertaken due to a condition or use of private real property | ||
described by Section 112.004(1) or to enforce a public health and | ||
safety law as described by Section 112.004(2), the owner shall, not | ||
later than the 120th day after the date the suit is filed, serve on | ||
each party or the party's attorney one or more expert reports, with | ||
a curriculum vitae of each expert listed in the report, for each | ||
governmental entity against which a taking claim is asserted. The | ||
date for serving the report may be extended by written agreement of | ||
the parties. Each governmental entity whose conduct is implicated | ||
in a report must file and serve any objection to the sufficiency of | ||
the report not later than the 21st day after the date the report was | ||
served. All objections are waived if the governmental entity fails | ||
to file the objection. | ||
(b) If, as to a governmental entity, an expert report has | ||
not been served within the period specified by Subsection (a), the | ||
court, on the motion of the affected governmental entity, shall, | ||
subject to Subsection (c), enter an order that: | ||
(1) awards to the affected governmental entity | ||
reasonable attorney's fees and costs of court incurred by the | ||
governmental entity; and | ||
(2) dismisses the claim with respect to the | ||
governmental entity. | ||
(c) If an expert report has not been served within the | ||
period specified by Subsection (a) because elements of the report | ||
are found deficient, the court may grant one 30-day extension to the | ||
owner in order to cure the deficiency. If the owner does not receive | ||
notice of the court's ruling granting the extension until after the | ||
120-day deadline has passed, the 30-day extension shall run from | ||
the date the owner first received the notice. | ||
(d) Notwithstanding any other provision of this section, an | ||
owner may satisfy any requirement of this section for serving an | ||
expert report by serving reports of separate experts regarding | ||
different issues related to the taking claim. | ||
(e) A court shall grant a motion challenging the adequacy of | ||
an expert report only if it appears to the court, after a hearing, | ||
that the report does not represent a good faith effort to comply | ||
with the requirements of an expert report under Subsections (h) and | ||
(i). | ||
(f) Until an owner has served the expert report and | ||
curriculum vitae as required by Subsection (a), all discovery in a | ||
taking claim is stayed except for the acquisition by the owner of | ||
information by means of: | ||
(1) written discovery as defined in Rule 192.7, Texas | ||
Rules of Civil Procedure; | ||
(2) depositions on written questions under Rule 200, | ||
Texas Rules of Civil Procedure; and | ||
(3) discovery from nonparties under Rule 205, Texas | ||
Rules of Civil Procedure. | ||
(g) Notwithstanding any other provision of this section, | ||
after a taking claim is filed, all owners, collectively, may not | ||
take more than two depositions before the expert report is served as | ||
required by Subsection (a). | ||
(h) At a minimum, an expert report under this section must | ||
state the expert's conclusion, together with the facts on which the | ||
expert relied in reaching that conclusion, with respect to whether | ||
the alleged taking: | ||
(1) has denied the owner all economically viable use | ||
of the property, if that is the basis for the owner's claim; | ||
(2) has made the private real property unusable for | ||
its intended purpose, if that is the basis for the owner's claim; or | ||
(3) has interfered with the owner's investment-backed | ||
expectations, if that is the basis for the owner's claim. | ||
(i) If an owner's taking claim alleges that the owner has | ||
sustained economic damages as the result of an alleged taking, the | ||
expert report under this section must state the expert's | ||
conclusion, together with the facts on which the expert relied in | ||
reaching that conclusion, regarding: | ||
(1) whether the alleged taking has resulted in | ||
economic damages to the owner as alleged; | ||
(2) the amount of economic damages, if any; and | ||
(3) whether the damages are de minimis compared to a | ||
public benefit, if any, that resulted from the taking. | ||
Sec. 112.006. INTERLOCUTORY APPEAL. A governmental entity | ||
may appeal from an interlocutory order of a court that denies a | ||
motion for summary judgment filed in good faith by the governmental | ||
entity on the ground that: | ||
(1) the owner has not met the owner's burden of | ||
production regarding one or more elements of the taking claim; or | ||
(2) an expert report required by this chapter has not | ||
been served. | ||
Sec. 112.007. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154 | ||
applies to a taking claim. | ||
SECTION 2. The change in law made by this Act applies only | ||
to an action on a taking claim with respect to a taking alleged to | ||
have occurred on or after the effective date of this Act. An action | ||
on a taking claim with respect to a taking alleged to have occurred | ||
before the effective date of this Act is governed by the law as it | ||
existed immediately before that date, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 3. This Act takes effect September 1, 2013. |